891 F.3d 1160
9th Cir.2018Background
- Ezzard Ellis was convicted in 1991 of murder, attempted murder, and robbery and sentenced to life without parole; conviction became final in 1996.
- Defense counsel Donald Ames, later shown by third-party declarations to have used repeated racist slurs and expressed contempt for Black clients, represented Ellis through five trials.
- Ellis learned of Ames’s racist remarks years after his conviction via media and declarations from Ames’s daughters and former staff, and sought state and then federal habeas relief claiming ineffective assistance based on an actual conflict of interest from counsel’s racial animus.
- State courts denied relief; procedural history includes multiple Ninth Circuit remands on timeliness/equitable tolling before the district court denied relief on the merits and Ellis appealed.
- The panel reviewed the claim de novo (state court applied an incorrect higher standard), but concluded Ninth Circuit precedent (Mayfield) controls and requires Ellis to show either contemporaneous knowledge of the animus causing breakdown in communication or specific deficient acts by counsel; Ellis did neither.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel’s racist statements established a Sixth Amendment violation requiring presumed prejudice | Ellis: Ames’s documented racist animus created an actual conflict of interest that precludes the need to show prejudice | Harrison: Under controlling Ninth Circuit precedent, Ellis must show either contemporaneous knowledge causing breakdown or specific deficient performance and prejudice | Court: Denied relief — bound by Mayfield; Ellis failed to show contemporaneous knowledge or specific deficient acts falling below Strickland standard |
| Proper standard of review under AEDPA and whether state court’s reasoning was contrary to clearly established law | Ellis: State court’s preponderance requirement was improper and review should be de novo | Harrison: State court applied preponderance, but circuit reviewed de novo because that was contrary to Strickland | Court: Reviewed de novo and applied only rules clearly established before finality; still rejected claim under precedent |
| Whether Frazer’s per se prejudice rule (for overt racist outbursts by counsel) controls | Ellis: Frazer supports presuming prejudice when counsel’s racism is so extreme | Harrison: Mayfield construes Frazer narrowly or overrules its per se rule; Mayfield requires showing adverse effect on performance | Court: Followed Mayfield and declined to apply Frazer’s broad per se prejudice doctrine |
| Whether Ellis’s lack of contemporaneous awareness of counsel’s racism is dispositive | Ellis: Prejudice should be presumed even if client unaware because racism likely affected representation | Harrison: Under existing Ninth Circuit law, client knowledge matters for presumption of breakdown; absent knowledge, must show deficient performance and prejudice | Court: Ellis conceded he was unaware; therefore could not rely on the Frazer-style presumption and failed to satisfy Strickland |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (standard for deficient performance and prejudice for ineffective assistance claims)
- Cronic v. United States, 466 U.S. 648 (1984) (circumstances where prejudice may be presumed when counsel is effectively absent)
- Cuyler v. Sullivan, 446 U.S. 335 (1980) (presumption of prejudice for adverse conflicts of interest when counsel actively represents conflicting interests)
- Frazer v. United States, 18 F.3d 778 (9th Cir. 1994) (attorney’s on-the-record racist outburst and extortionate threat entitled defendant to new trial; suggested presumption of prejudice)
- Mayfield v. Woodford, 270 F.3d 915 (9th Cir. 2001) (en banc) (held petitioner failed to show counsel’s racism adversely affected performance; constrained Frazer’s per se rule)
- Cullen v. Pinholster, 563 U.S. 170 (2011) (federal habeas review under §2254(d)(1) limited to the state-court record)
- Williams v. Taylor, 529 U.S. 362 (2000) (clarified AEDPA deference and that requiring preponderance for Strickland prejudice is contrary to clearly established law)
- Wilson v. Sellers, 138 S. Ct. 1188 (2018) (look to last reasoned state court decision in §2254(d) review)
- Teague v. Lane, 489 U.S. 288 (1989) (new procedural rules generally do not apply retroactively to cases already final)